[EL] ELB News and Commentary 9/21/16

Tue Sep 20 21:37:20 PDT 2016

“When the Electoral Map Governs Presidential Campaign Strategy”<http://electionlawblog.org/?p=86730>
Posted on September 20, 2016 9:32 pm<http://electionlawblog.org/?p=86730> by Rick Hasen<http://electionlawblog.org/?author=3>

John Harwood for the NYT:<http://www.nytimes.com/2016/09/21/us/politics/trump-clinton-electoral-college.html?ref=politics>

Donald J. Trump<http://www.nytimes.com/interactive/2016/us/elections/donald-trump-on-the-issues.html?inline=nyt-per>’s progress in national polls has done something in the 2016 presidential race that is unusual. It has made the Electoral College matter.

Usually it doesn’t. Because voter preferences are distributed relatively evenly across the United States, modest advantages in the popular vote usually translate into substantial majorities in the Electoral College.

But Mr. Trump, in T<http://www.nytimes.com/interactive/2016/us/elections/polls.html>he New York Times’s national polling average<http://www.nytimes.com/interactive/2016/us/elections/polls.html>, has pulled within two points of Hillary Clinton<http://www.nytimes.com/interactive/2016/us/elections/hillary-clinton-on-the-issues.html?inline=nyt-per>. In an election that close, state-to-state variations assume an outsize role.

If Mr. Trump draws within 1.5 percentage points of Mrs. Clinton in the popular vote,according to calculations by Harry Enten at FiveThirtyEight<http://fivethirtyeight.com/features/why-clintons-electoral-map-isnt-as-good-as-obamas/>, he would win 266 electoral votes under current patterns of support for the candidates. By tilting any of three additional battlegrounds — Colorado, New Hampshire or Pennsylvania — he would win the presidency.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, electoral college<http://electionlawblog.org/?cat=44>

“Mega-donors shower attention on congressional races with late money surge”<http://electionlawblog.org/?p=86728>
Posted on September 20, 2016 9:26 pm<http://electionlawblog.org/?p=86728> by Rick Hasen<http://electionlawblog.org/?author=3>

This time of the election season is the best to see the Plutocrats in full bloom.<https://www.washingtonpost.com/politics/megadonors-shower-attention-on-congressional-races-with-late-money-surge/2016/09/20/25b3a214-7f45-11e6-9070-5c4905bf40dc_story.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>

“Hillary Clinton’s main super PAC has raised $132 million. A third came from six wealthy allies.”<http://electionlawblog.org/?p=86726>
Posted on September 20, 2016 9:22 pm<http://electionlawblog.org/?p=86726> by Rick Hasen<http://electionlawblog.org/?author=3>

Matea Gold for WaPo.<https://www.washingtonpost.com/news/post-politics/wp/2016/09/20/hillary-clintons-main-super-pac-has-raised-132-million-a-third-came-from-six-wealthy-allies/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Trump used $258,000 from his charity to settle legal problems”<http://electionlawblog.org/?p=86724>
Posted on September 20, 2016 9:21 pm<http://electionlawblog.org/?p=86724> by Rick Hasen<http://electionlawblog.org/?author=3>

David Fahrenthold of WaPo has this report<https://www.washingtonpost.com/politics/trump-used-258000-from-his-charity-to-settle-legal-problems/2016/09/20/adc88f9c-7d11-11e6-ac8e-cf8e0dd91dc7_story.html>, part of a series on the Trump Foundation and charitable giving that should earn him a Pulitzer:

Donald Trump spent more than a quarter-million dollars from his charitable foundation to settle lawsuits that involved the billionaire’s for-profit businesses, according to interviews and a review of legal documents.

Those cases, which together used $258,000 from Trump’s charity, were among four newly documented expenditures in which Trump may have violated laws against “self-dealing” — which prohibit nonprofit leaders from using charity money to benefit themselves or their businesses….

In the other case in which a Trump Foundation payment seemed to help settle a legal dispute, the trouble began with a hole-in-one.

In 2010, a man named Martin Greenberg hit a hole-in-one on the 13th hole while playing in a charity golf tournament at Trump’s course in Westchester County, N.Y.

Greenberg won a $1 million prize. Briefly.

Later, Greenberg was told that he had won nothing. The prize’s rules required that the shot had to go 150 yards. But Trump’s course had allegedly made the hole too short.

Greenberg sued.

Eventually, court papers show, Trump’s golf course signed off on a settlement that required it to make a donation to a group of Greenberg’s choosing. Then, on the day that the parties informed the court they had settled their case, a $158,000 donation was sent to the Martin Greenberg Foundation.

That money came from the Trump Foundation, according to the tax filings of both Trump’s and Greenberg’s foundations.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“FEC Faulted for Failure to Enforce Disclosure on Nonprofits”<http://electionlawblog.org/?p=86722>
Posted on September 20, 2016 9:17 pm<http://electionlawblog.org/?p=86722> by Rick Hasen<http://electionlawblog.org/?author=3>

Ken Doyle<http://www.bna.com/fec-faulted-failure-n57982077289/> for Bloomberg BNA.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>, tax law and election law<http://electionlawblog.org/?cat=22>

“Deadlock: FEC Commissioners Say They’re Failing to Investigate Campaign Violations”<http://electionlawblog.org/?p=86720>
Posted on September 20, 2016 9:14 pm<http://electionlawblog.org/?p=86720> by Rick Hasen<http://electionlawblog.org/?author=3>

Extensive NBC report.<http://www.nbcwashington.com/investigations/Deadlock-FEC-Commissioners-Say-Theyre-Failing-to-Investigate-Campaign-Violations-394014971.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

Lessig Speaking to Bipartisan Campaign Reform Caucus on Thursday<http://electionlawblog.org/?p=86718>
Posted on September 20, 2016 7:17 pm<http://electionlawblog.org/?p=86718> by Rick Hasen<http://electionlawblog.org/?author=3>

Details. <https://mcnerney.house.gov/about/CampaignFinanceReformCaucus>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Justice Kennedy’s Non-Comment to Lee Fang on How Citizens United Has Worked Out<http://electionlawblog.org/?p=86713>
Posted on September 20, 2016 3:28 pm<http://electionlawblog.org/?p=86713> by Rick Hasen<http://electionlawblog.org/?author=3>

Lee Fang buttonholed the Justice at what sounds like a conference, and you can listen to the brief exchange<https://twitter.com/davidSrauf/status/778306641166934016> (before Fang asks if he’s being detained):

Fang: You wrote the Citizens United decision and the crux of that decision was that independent expenditures are indeed independent and not coordinated with the candidate. But as we’ve seen in the last six years, that has not been the case, millions of dollars has been coordinated between…

J. Kennedy: Well I don’t comment….That’s for the bar and the lower bench to figure out.

Fang:Do you think the case should be revisited?

J. Kennedy: I don’t comment on my cases. They say what they say.

Fang: I’m sorry?

J. Kennedy: “Hi Dorothy, how are you?”

Update: As a reminder, Justice Kennedy has commented<http://www.huffingtonpost.com/entry/citizens-united-anthony-kennedy_us_5637c481e4b0631799134b92> in the past on how Citizens United has been going.

Second update: Fang writes<https://theintercept.com/2016/09/20/justice-kennedy-citizens-united/> this was on a visit by Justice Kennedy to the courthouse in Sacramento.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

Texas Promises Cert. Petition to #SCOTUS This Week in Voter ID Case<http://electionlawblog.org/?p=86711>
Posted on September 20, 2016 3:06 pm<http://electionlawblog.org/?p=86711> by Rick Hasen<http://electionlawblog.org/?author=3>

So reports<https://twitter.com/davidSrauf/status/778306641166934016> David Saleh Rauf.

Presumably this will not be accompanied by any request for emergency relief, meaning we should hear by around January if the Supreme Court would hear the full appeal.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

“A Trump presidency would be ethically compromised”<http://electionlawblog.org/?p=86708>
Posted on September 20, 2016 2:20 pm<http://electionlawblog.org/?p=86708> by Rick Hasen<http://electionlawblog.org/?author=3>

Richard Painter and Norm Eisen—ethics czars for Bush and Obama—weigh in on Trump.<https://www.washingtonpost.com/opinions/a-trump-presidency-would-be-ethically-compromised/2016/09/20/0b01a492-7e9c-11e6-8d13-d7c704ef9fd9_story.html?utm_term=.b5ebeb1edd8b>

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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>

Iowa Republicans Now Pushing Early Voting<http://electionlawblog.org/?p=86706>
Posted on September 20, 2016 11:52 am<http://electionlawblog.org/?p=86706> by Rick Hasen<http://electionlawblog.org/?author=3>

Good for them.<http://www.npr.org/2016/09/20/494684723/republican-leaders-in-iowa-show-full-support-for-donald-trump> (And quite a different attitude from Republicans in other parts of the country, like North Carolina, where this is seen to benefit Democrats.)

We should make it more convenient for everyone to vote.

Earlier: The New Conservative Assault on Early Voting<http://www.slate.com/articles/news_and_politics/politics/2014/02/the_new_conservative_assault_on_early_voting_more_republicans_fewer_voters.html>.
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Posted in election administration<http://electionlawblog.org/?cat=18>

Goldfeder Presidential Quiz is Up<http://electionlawblog.org/?p=86704>
Posted on September 20, 2016 11:48 am<http://electionlawblog.org/?p=86704> by Rick Hasen<http://electionlawblog.org/?author=3>

Take a lunch break.<http://www.stroock.com/files/upload/JerryGoldfederDailyQuiz.pdf>

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The Myth of Pervasive Voter Fraud”<http://electionlawblog.org/?p=86702>
Posted on September 20, 2016 11:34 am<http://electionlawblog.org/?p=86702> by Rick Hasen<http://electionlawblog.org/?author=3>

Andrew Cohen<https://www.brennancenter.org/analysis/myth-pervasive-voter-fraud> for Brennan:

One of the most distressing indications of failure in American journalism today is the release of a poll last week that reveals<https://www.washingtonpost.com/news/the-fix/wp/2016/09/15/poll-nearly-half-of-americans-say-voter-fraud-occurs-often/> that nearly half of the country believes that voter fraud occurs “very or somewhat often.” Since there is no rational basis in law or fact for this belief, since you are more likely to be struck by lightning than to be a victim of in-person voter fraud<http://www.motherjones.com/kevin-drum/2014/08/voter-fraud-literally-less-likely-being-hit-lightning>, the poll results tell us that reporters, analysts, and commentators who try to cover this topic have failed to adequately explain to our audiences the contours of the myth of voter fraud<http://www.brennancenter.org/analysis/debunking-voter-fraud-myth> or to highlight how the issue has been hijacked by one party<http://www.newyorker.com/magazine/2012/10/29/the-voter-fraud-myth> to try to disenfranchise those likely to vote for the other party.

The poll results tell us that the scourge of “false equivalence” in reporting has infected this intensely-partisan policy area in the same way it has infected other areas. There is no “on the one hand, on the other hand” when it comes to the evidence about the sort of voter fraud that voter identification laws are supposedly designed to prevent. Just because Republican lawmakers in several states have passed these laws, and just because some conservative judges have upheld them, does not mean that the rationale supporting the legislation is legitimate. It is not, as the story of the voter ID law in Texas teaches us<https://www.texastribune.org/2016/07/20/appeals-court-rules-texas-voter-id/>.

Nor is there a valid he said/she said divide when it comes to the arguments made by lawmakers to justify limiting early voting days or hours or restricting access to polling stations. The latest of these arguments made in North Carolina—that early voting is a menace because early voters could die between the time they cast a ballot and the day of the election<https://thinkprogress.org/north-carolina-gops-new-argument-against-early-voting-people-could-die-before-election-day-8b7e36748248#.b402q6301>—is laughable until you remember that absentee ballot fraud, a potentially far more serious problem, was left unaddressed by those same lawmakers. More white people vote by absentee ballot. More minority voters cast early ballots. That explains it all.

Debunking the myth of pervasive voter fraud, like debunking the myth behind Barack Obama’s foreign birth or the myth that global warming is a hoax, requires a level of journalistic commitment that few news outlets are able or willing to muster. It requires, you could say, a chipping away with relentless evidence at people unable or unwilling to let facts interfere with their beliefs. It requires the victory of logic over fear, of evidence over bias, and today those victories seem harder than ever.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

Sad News: Sunlight Foundation Likely to Fold or Merge into Another Organization<http://electionlawblog.org/?p=86700>
Posted on September 20, 2016 11:30 am<http://electionlawblog.org/?p=86700> by Rick Hasen<http://electionlawblog.org/?author=3>

And the statement<https://sunlightfoundation.com/blog/2016/09/20/statement-from-sunlight-foundations-board-chairman/> in part blames the Supreme Court’s Citizens United decision for limiting the opportunities for meaningful money-in-politics reforms.

If that’s the reason, hang on. Things could be getting much better in the next few years.
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Posted in election law biz<http://electionlawblog.org/?cat=51>

Could WI’s Approach to Voter ID Get Even More Disgusting?<http://electionlawblog.org/?p=86698>
Posted on September 20, 2016 11:14 am<http://electionlawblog.org/?p=86698> by Rick Hasen<http://electionlawblog.org/?author=3>

One of the arguments that is often made in favor of mandatory voter id is the paternalistic one that forcing people to come up with the costs for the underlying documents etc. to get a state-issued voter id card will actually help these folks in other areas, such as opening a bank account.

Not the strongest argument in the world for a mandatory plan that still puts burdens on some voters, but I get it.

But now Patrick Marley reports<http://www.jsonline.com/story/news/politics/elections/2016/09/20/dmv-proposes-limits-voter-id-cards/90734878/>:

Gov. Scott Walker’s administration wants to stamp “voting purposes only” on the free IDs the state makes available, making it harder for people to use them to open bank accounts or prove their identity when they pick up their children from day care.

But wait: it gets worse. The whole point of requiring these strict voter id cards is to stop (virtually non-existent) impersonation voter fraud.  Marley again:

The Division of Motor Vehicles also is proposing having the state produce cheaper, lower-quality IDs that have fewer fraud protections.

And for the icing on the cake:

Julie Lund, a spokeswoman for the state Department of Health Services, said she did not know whether the state would prevent people from using the voter IDs to access food stamps or health care programs for low-income people.

Disgusting.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

At Least Some PA Overseas Ballots Apparently Omit Gary Johnson, Contain Other Errors<http://electionlawblog.org/?p=86693>
Posted on September 20, 2016 8:59 am<http://electionlawblog.org/?p=86693> by Rick Hasen<http://electionlawblog.org/?author=3>

I’ve just received what I’ve been told is a copy of the overseas ballot sent by Susquehanna County, PA.

Gary Johnson is omitted, the Constitution Party candidates are listed as being from the Conservative Party, and it has the wrong VP for the Green Party.

Details matter people!

[usquehanna-ballot]<http://electionlawblog.org/wp-content/uploads/Susquehanna-ballot.jpeg>

Update: Apparently the county has sent out corrected ballots. More to come.
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Posted in ballot access<http://electionlawblog.org/?cat=46>, election administration<http://electionlawblog.org/?cat=18>

Court in TX Voter ID Case Grants DOJ Motion on Voter ID Education, Requires Preclearance of Materials<http://electionlawblog.org/?p=86690>
Posted on September 20, 2016 8:52 am<http://electionlawblog.org/?p=86690> by Rick Hasen<http://electionlawblog.org/?author=3>

The plaintiffs in the Texas voter id litigation have been complaining that Texas has not properly alerted voters that for this election they can vote without one of the narrow forms of ID. The court has now issued this order, granting the US motion and denying the private plaintiffs’ motion. Among other things, the order requires Texas to show educational materials to plaintiffs before publicizing for possible objection–a type of preclearance. Wow.

From the order:

ORDERED that the State of Texas shall re-issue its press releases concerning voting to properly reflect the language in the Court’s Order Regarding Agreed Interim Plan for Elections (D.E. 895) in their respective titles or headings;

ORDERED that the State of Texas shall edit the poster to be printed and placed at polling locations to accurately reflect the language in the Court’s Order Regarding Agreed Interim Plan for Elections (D.E. 895);

ORDERED that the State of Texas shall provide to counsel for all Plaintiffs scripts and copy for documents and advertisements that have not yet been published for review and objection prior to publication;

ORDERED that the State of Texas shall edit digital materials on its website page(s) that address voting rights and procedures, including titles or headlines and FAQs to reflect that voters who “do not possess an acceptable form of photo identification and cannot obtain one due to a reasonable impediment” may vote after signing the Reasonable Impediment Declaration;

ORDERED that all materials related to the education of voters, poll workers, and election officials that have not yet been published shall reflect the language of the Court’s prior Order (D.E. 895);

ORDERED that the State of Texas is not required to alter training materials that have already been published except as set out above
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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